BP Southern Africa has been found guilty of failing to fulfil its duty to protect the environment when it built or upgraded a number of petrol stations without relevant authorisation.
The case – described by presiding Judge Brian Spilg as “straightforward” – was brought by an advocacy group rather than the state, and is believed to be the first successful private prosecution of environmental crime in South Africa.
It saw Uzani Environmental Advocacy accuse BP of failing to protect the environment when it built or upgraded 21 filling stations without compiling and submitting reports about the impact they would have on the environment.
Further, the advocacy group said the oil and gas multinational had not obtained authorisation from the minister of environmental affairs or the relevant delegated authority before it commenced with construction of the filling stations.
This is a breach of the Environmental Conservation Act which requires anyone who wants to undertake an activity designated as “controlled” by the minister because it involves hazardous or dangerous substances – such as petrol and diesel – to comply with these requirements.
Spilg’s judgment, delivered at the Johannesburg High Court on April 1, ruled that BP was guilty of unlawfully constructing 17 of the petrol stations in question before receiving the necessary clearance to do so. BP was acquitted of the charges relating to the other four petrol stations.
Uzani was granted leave to privately prosecute BP for environmental offences under the National Environmental Management Act (Nema).
“It is the very first time in history that a private prosecution [was] given leave to proceed in the high court and as such it has given effect to the objective stated in the preamble to Nema that the act must enable civil society to enforce environmental laws,” said Gideon Erasmus, the lawyer representing Uzani.
While the 17 petrol stations were constructed from 1998, BP only began the process of getting authorisations in 2004, after they had been built. Following multiple delays in submitting the necessary documents the exercise was finally completed in 2013, said Erasmus.
According to an expert witness brought by Uzani, getting environmental authorisation before a filling station is built is important because “post-construction authorisation adopts lower standards to those demanded by a pre-construction environmental impact assessment reports”.
The expert said that when an authorisation application is brought after the fact through a rectification report, refusing the application is not “really an option because it could result in job losses”.
Spilg noted that when challenged on his claim that post-construction approval was inferior, the expert “stood his ground and BP did not attempt to bring contradictory expert testimony”.
The expert, in outlining the environmental risks, said that a relatively small volume of fuel can pollute a large area of groundwater – and the pollution is effectively irreversible once it occurs.
BP: No risk to environment
BP later argued that there was no evidence that any of its filling stations were a risk to the environment.
Spilg said the company backed its claim up using submissions made during an amnesty period that said the filling stations were not located in a sensitive environment and thus posed no significant risk. BP further argued that environmental audits were conducted on the sites every three years “to ensure maximum environmental protection”.
The judge dismissed BP’s arguments for two reasons: Firstly, he said, they were not put to the expert witness. Secondly, “the untested say-so of BP during an amnesty period can hardly be described as sufficient evidence”.
‘Unfair’ says BP
BP also argued that the process was unfair as it had already paid fines when it applied for post-authorisation.
In an emailed response to questions posed by Moneyweb, BP said it disagreed with Spilg’s judgment: “The legal process is ongoing and once finalised we will consider our options.”
In its application, Uzani also seeks to recover damages suffered as a result of activity by competitor filling stations or any other compensation ‘they’ may be entitled to.
Erasmus could not elaborate on who this relates to or the compensation they are seeking as that issue will be deliberated in the sentencing phase, which is still before the courts.
Commenting on the judgment, Erasmus said any financial benefit that will be received by Uzani will be ceded to its foundation, which will use the funds “exclusively for the process of advancing a number of environmental causes”.
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